One Way to Protect Washington State's Legal Weed Market from Trump: Burn It to the Ground

The Author of I-502 Explains the Nuclear Option

Who's most in jeopardy from a Trump administration? Where to start? People of color, women, workers, and the environment all stand to lose if Donald Trump implements the policies he campaigned on. But the legal weed market faces serious uncertainty, too, with billions of dollars in tax and start-up capital and millions of possible federal felony charges on the line.

It used to be that every 50 minutes in Washington State, someone was arrested on cannabis charges. A disproportionate number of those arrests were people of color. After I-502 passed, which legalized recreational weed in this state, those arrests rarely happen now. But now the people who built and are carrying out I-502's regulatory system are in legal jeopardy in light of existing federal drugs laws.

President-elect Trump—who doesn't drink, smoke, or use drugs—has tapped die-hard prohibitionist Senator Jeff Sessions (R-AL) to be his attorney general. Sessions said just this year, according to Politico, "Good people don't smoke marijuana." He has said that cannabis policy reform has been a "tragic mistake." He even once said he thought the KKK "were okay until I found out they smoked pot."

So while it's unlikely the federal government will send DEA agents into states like Washington to enforce federal laws, what if Sessions decides it's worth it? What if, in his political calculation, this is the issue he wants to be remembered for?

The lawyer responsible for legal pot in Washington has an unlikely answer: We could burn the whole legal cannabis system down.

"The most effective way to defeat federal interference in cannabis regulatory systems may very well be for state legislators to repeal all laws and regulations relating to cannabis," said Alison Holcomb, the ACLU attorney who wrote I-502 and ran the successful legalization campaign in 2012.

Holcomb's plan would have the state legislature completely strip any mention of cannabis from Washington's legal code, removing both the laws currently regulating the state's legal cannabis market and the much older laws criminalizing cannabis in the first place. Technically, cannabis in Washington is still illegal under the state's controlled substance statutes, but I-502 carved out an exception to the state's prohibition of cannabis provided the cannabis business is conducted within the new regulatory framework.

"Repeal it all, so there are no laws on the Washington State books that address marijuana," Holcomb said.

That would make the state totally blind toward cannabis—no state agency would keep records on cannabis businesses, no law enforcement officer in the state could investigate pot crimes. It would turn the very regulated and rational cannabis market into the federal government's worst nightmare. The regulations keeping Washington's legal pot within our state, out of children's hands, and away from organized crime would all dissolve.

This would not stop the federal government from cracking down on pot. Federal agents would still have every legal right to knock down doors, confiscate bud, and make arrests. But with only about 5,500 sworn DEA agents in the United States, this task would be equal parts Herculean and Sisyphean. Most federal law enforcement raids put the heavy lifting on local law enforcement, which numbers more than 750,000 sworn officers across the country. But if there were no statewide laws on cannabis, local law enforcement would not be able to help.

This is a prospect that the Obama administration has already considered, and used as a basis for not blocking Colorado's and Washington's cannabis experiments. When the lawyers at the Department of Justice looked at ways of responding to I-502, they saw that they had legal merit to sue against Washington's cannabis regulations, but they would be unable to force the state to criminalize cannabis.

Deputy Attorney General James Cole said as much at a Senate hearing in 2013. "It would be a very challenging lawsuit to bring to preempt the state's decriminalization law. We might have an easier time with their regulatory scheme in preemption, but then what you would have is legalized marijuana and no enforcement mechanism within the state to try to regulate it," he said.

Not every lawyer looking at legal cannabis is ready to sign on to Holcomb's plan.

Sam Mendez, executive director of the Cannabis Law and Policy Project at the UW School of Law, said Holcomb's idea was interesting but he didn't think it was the best way to block aggression from the Trump administration.

"It's sort of like a scorched-earth strategy," Mendez said. "We're going to burn down our house so the robbers won't rob it. I am just as terrified of the Trump administration as anybody else is, but it behooves the industry to work with the administration to at least keep a status quo rather than start a war."

Or maybe, with a deal-maker-in-chief in the White House, the legal cannabis industry could get on Trump's good side by giving him a bit of the action. Clif Curry, a staff attorney for the King County Council, said it may make sense for states with legal cannabis to offer to pay federal excise taxes on pot sales.

"By letting the federal government in on tax revenues (which they will need for other planned initiatives), the states might be able to preserve their current programs," Curry said by e-mail.

While there may be few legal barriers stopping Trump from going after the pot industry, he would be picking a difficult fight if he chose to do so. More than half of Americans believe pot should be legal, according to the latest polls, and legalization of recreational weed has spread to eight states and more than 68 million Americans. Almost half the nation has allowed some form of medical cannabis.

Holcomb said she thought it was unlikely Trump would wage a full-on war against cannabis and didn't think the I-502 system should be preemptively repealed, but she felt it was worth making this point to the incoming administration.

"I think it's useful for us to remember these arguments and to lay out the argument for why the federal government should hesitate before they step in and frustrate the will of the voters in the states that have passed these regulatory systems," Holcomb said.

It seems ironic for the architect of I-502 to call for its possible demise, but Holcomb said she still has the same goal in mind that she had when writing the measure in the first place. "The point of I-502 was to stop arresting people for using marijuana," she said. "And I-502 was the right vehicle at that time to move us in that direction, and depending on what happens now, we may have to move in an entirely new direction. But the North Star is the same North Star: Don't arrest people... because they use marijuana or grow it and want to share it with others."